Working from home has soared since the outbreak of the corona pandemic. A structural increase in home-working is expected after the end of the corona crisis, now that many employees and employers have acquired a taste for working from home. When employees work from home on a structural basis, it is advisable to implement a home-working policy. This newsletter discusses a number of legal aspects that should in any event be addressed when drawing up a home-working policy.

Health & safety aspects and duty of care

Employers must ensure good and safe working conditions. The same applies when the work is performed from home or at a place of the employee’s choice. But a more relaxed working conditions regime applies when an employee works from home. Certain health and safety obligations (such as those relating to escape routes and fire hazards) then do not apply.

An employer’s main obligation is to ensure that the home workplace is set up in accordance with ergonomic principles, insofar as that is not already the case. Employers must monitor this remotely. If the workplace is unsatisfactory, employers must arrange for the availability of appropriate work equipment, such as an ergonomic chair, an adjustable desk and other peripherals, such as a separate mouse and keyboard. However, the obligation to provide an ergonomically equipped workplace does not apply if the employer cannot reasonably be required to do so. That is the case, for instance, if the employee works from home only for short periods on an occasional basis.

Because employers are unable to monitor employees who work from home, it is important to include specific instructions on the ergonomic design of the home workplace in the home-working policy. Specific risks associated with working from home must also be recorded in a hazard identification and risk assessment. Established case law provides that this also includes giving instructions on the risks associated with screenwork. As a rule, it is not sufficient to issue such instructions once: employers should continue to draw the attention of homeworkers to those instructions on a regular basis. That can be done, for instance, by periodically providing an overview of the requirements that an ergonomically equipped workplace must meet, providing specific checklists and sending targeted instruction videos. To ensure that the workplace has been set up correctly, an employer can also offer the employee the opportunity to contact an occupational health expert or an ergonomics consultant if he or she has any doubts about the correct set-up of the home workplace.

Guaranteeing safe and sound working conditions also means implementing a policy regarding the psychosocial workload. Research has shown that employees experience a greater workload and more stress when they work from home. It is up to the employer to limit the work pressure and to pay specific attention to this in the home-working policy. It is advisable to proactively inquire at regular intervals how the employees working from home experience the work pressure, so that timely action can be taken if necessary.

Employee privacy and performance monitoring

Although recent experience has shown that working from home does not generally impair employee productivity, many employers will nevertheless wish to monitor their employees’ performance when they work from home. All kinds of software are available for that purpose. Before implementing such software within the company, the employees’ privacy must be taken into account. It follows from the European General Data Protection Regulation (“GDPR”) and case law of the ECHR that the following conditions must be met:

• The employer must have a legitimate interest in monitoring its employees.
• The use of monitoring/surveillance systems must be necessary, i.e. the objective cannot be achieved by other, less intrusive means.
• The data minimisation principle must be observed (data collection must be kept to a minimum and data may not be kept longer than strictly necessary).
• Employers must inform employees about what is and is not permitted, and that surveillance/monitoring is possible and how it will take place.
• Employers must take into account their employees’ right to confidential communication.
• Before large-scale data processing or systematic employee monitoring takes place, a data protection impact assessment (“DPIA”) must first be carried out.

Only when these conditions are met may monitoring software be implemented. The home-working policy must inform employees about the software and might provide a brief explanation that the conditions are being met.

Data protection

In addition to employee privacy, the employer’s data (including third-party personal data) must also be protected. Working from home gives rise to additional risks in terms of data protection. An employee who works from home could lose his or her laptop computer, family members could become aware of confidential telephone calls or gain unauthorised access to confidential data, or a device might be insufficiently secured. In sum, working from home gives rise to an increased risk of a data breach. It is important that employers and employees are aware of this. Special attention should therefore be given in the home-working policy to data protection and a clear “mandatory data breach notification” procedure.

On a final note

Working from home is an integral part of today’s society, and is more likely to increase than decrease. We advise all employers that have structurally home-working employees to draw up a home-working policy that sets out the agreements and conditions on the basis of which employees may work from home in a responsible and safe manner. That will benefit both employers and employees. In addition to the aspects addressed in this article, agreements could also be made about a home-working allowance and on how and when the employee can be reached. Finally, it should be borne in mind that the works council may need to be involved in drawing up the home-working policy, or in any event certain aspects of it.

Please contact Lise van den Heuvel (+31-6-23492248) or Puck Keurentjes (+31-6-12860380) for more information or advice on this subject.

This article was published in the Newsletter Vestius of October 2021

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